Saturday, February 23, 2013

Points of Rebellion - William O. Douglas

Justice Douglas is my favorite Supreme Court justice. Law school is extremely boring at times, but any class that features Supreme Court opinions from 1939-1975 holds the potential for excitement: Douglas is likely to dissent in many cases, and there is almost always a sentence or two of pure brilliance and disgust. Points of Rebellion, then, is a 97 page dissent against America as she stood in 1969. It is a fantastic book and I highly recommend it.

In college, I majored in Writing and Politics at the Gallatin School of Individualized Study at New York University. We were required to state our concentration and present a colloquium on the topic. I chose "Political Rebellion in Literature." My presentation (delivered to my academic adviser, as well as two other faculty members) was mostly a mess. We had to talk about 30 books. Some of my books were Utopia (Sir Thomas More), Hamlet, The Rebel (Albert Camus), The Flowers of Evil (Charles Baudelaire), The Origins of Totalitarianism (Hannah Arendt), One-Dimensional Man (Herbert Marcuse), White Noise (Don DeLillo), Something Happened (Joseph Heller), Anti-Intellectualism in American Life (Richard Hofstadter), The Trial (Kafka), Discourse on Method (Descartes), Bend Sinister (Vladimir Nabokov), and others...

My basic argument was that the different forms of rebellion had been squashed by the majority in American society. I could not make this argument anywhere nearly as well as I could today.

Points of Rebellion would have been THE PERFECT BOOK for this colloquium, and I am sorry that I did not know anything about the law, or the Court, when I was 21 and designing my project.

Were I to give this presentation today, the so-called "Occupy movement" would no doubt move heavily to the forefront of the conversation. Last year when the police arrested protesters on the Brooklyn Bridge and raided Zuccotti Park, I wrote on Facebook that it had taken 7 years, but I had finally been proven wrong: the flowers of rebellion still bloom today.

But I would like you, one day, to look at Google Analytics (I find it from my finance page) and look at Domestic Trends and see the last ten years in various industries. You will be able to see some remnants of the Great Recession, but more notable is the continued dominance of the credit card industry.

While the "Occupy movement" may have brought like-minded individuals together and fostered a stronger public consciousness of the ways in which the financial industry has siphoned off economic growth from 99% of the population, it is hard to say that they have made a serious impact. Elizabeth Warren has made a much stronger impact in terms of formulating the Consumer Financial Protection Bureau, and she is but one person. It is far too early to talk about 2016, but other people are already whispering that Hillary Clinton will be running on the Democratic ticket--but I am convinced that the only way we can enter into a "golden age" is with Warren as President. Many people are saying that we will continue to live with high unemployment rates for the rest of our lives, but if more people read Points of Rebellion, one would realize that rapid and radical change is, in fact, possible.

To be sure, Douglas's vision of an American utopia is improbable. It is quite easy to counter Douglas's statements or claim that he asks too much out of people. Indeed, many of his statements ignore the psychological tendencies of people to organize themselves in "the Establishment" that Douglas faced in his lifetime, and that we still face today.

First, Points of Rebellion was written in 1970--but it might as well have been written yesterday because nothing has changed (excepting some of the statements about foreign affairs):

"The advances of technology present the problem of increasing disemployment in the private sector. We brag about our present low unemployment. But that is due to Vietnam. Without Vietnam we would have 15 per cent or more unemployment. Must we fight wars to have full employment?
Technology is in the saddle and displaces manpower. The old problem of unemployment has become the new problem of disemployment. How many of the present eighteen-year-old men and women will be permanently disemployed? Thoughts such as these fill the hearts of the young with dismay." (66)

Douglas does, at one point, flex his literary experimentation to hilarious effect:

"A number of federal agencies also use personality tests. One included the following choices:--my father was a good man, I am very seldom troubled by constipation, my sex life is satisfactory, evil spirits possess me at times, at times I feel like swearing, I have had very peculiar and strange experiences, I have never been in trouble because of my sex behavior, during one period when I was a youngster I engaged in petty thievery, my sleep is fitful and disturbed, I do not always tell the truth, as a youngster I was suspended from school one or more times for cutting up, everything is turning out just like the prophets of the Bible said it would.
The experts are at odds about these personality tests. These tests commonly grade a person by eight, nine, or ten traits while twenty-five thousand traits might approximate an accurate personality portrayal. Moreover, the creator of the test fashions his own neurotic world as, for example, to daydream is neurotic--the thesis that is present in one personality test." (25)

Most people know nothing of Justice Douglas. Law students may hear the gossip that he was married four times and that he was an early advocate of environmental protection. His passion for the environment is present throughout Points of Rebellion. Sometimes his love for it is so innocent and genuine that one cannot help but be moved:

"I remember an alpine meadow in Wyoming where willows lined a clear, cold brook. Moose browsed the willow. Beaver came and made a dam which in time created a lovely pond which produced eastern brook trout up to five pounds. A cattle baron said that sagebrush was killing the grass. So the Forest Service sprayed the entire area. It killed the sagebrush and the willow too. The moose disappeared and so did the beaver. In time the dam washed out and the pond was drained. Ten years later some of the willow was still killed out; the beaver never returned; nor did the moose." (83)

Notably, Justice Douglas does not write as you would expect a Supreme Court justice to write--and it is refreshing as hell:

"In April, 1968, only 3.5 per cent of the general population was unemployed, while for those in the slum areas it was 7 per cent, with 5.7 per cent for whites and 8.7 per cent for Negroes.
The national white unemployment rate has been about 3.1 per cent and the national Negro unemployment rate 6.7 per cent.
Police practices are anti-Negro.
Employment practices are anti-Negro.
Housing allocation is anti-Negro.
Education is anti-Negro.
The federal government, with its hundreds of federally-financed public road contracts, and its thousands of procurement contracts negotiated each year by the Pentagon and other agencies to purchase munitions, towels, stationery, pens, automobiles and the like, is admonished by Congress to make sure that the contractors for these goods make jobs available without discrimination. President Johnson gave hardly more than lip service to that mandate." (45-46)

When a Supreme Court justice can write the way Douglas does, one feels more secure in their love for their country. However, there have not been many like him. Points of Rebellion predates the creation of the Environmental Protection Agency, and one supposes that Douglas would think that agency a step in the right direction. However it is more likely that he would find much to hate about it too. His distaste for the administrative state is eloquently stated in another passage that could be written yesterday:

"Corporate interests, as well as poor people--unemployed people as well as the average member of affluent society--are affected by these broad generalized grants of authority to administrative agencies. The corporate interests have been largely taken care of by highly qualified lawyers acting in individual cases and by Bar Associations proposing procedural reforms that define, for example, the 'aggrieved' persons who have standing to object to agency orders or decisions. [One wishes Douglas was on the Court when Lujan v. National Wildlife Federation came down...] But the voices of the mass of people are not heard; and the administrative agencies largely have their own way.
Moreover, the Establishment controls those agencies. That control does not come from corrupt practices or from venality. It results from close alliances made out of working relations, from memberships in the same or similar clubs, from the warp and woof of social relations, and from the prospects offered the administrator for work in the ranks of the Establishment, if he is the right and proper man. The administrative office is indeed the staging ground where men are trained and culled and finally chosen to the high salaried posts in the Establishment that carry many desirable fringe benefits. The New Dealers mostly ended up there. Under Lyndon Johnson there was lively competition for administrative men who would in two years have made a million working for the Establishment. That is a powerful influence among many agencies; and it results in those who have agency discretion exercising it for the benefit of those who run the corporation state. And those people are by and large the exploiters." (79-80)

Like a law review article, this book ends with suggestions for reform. President Obama should read this book (or at least indicate to me that he has read this book) and so should Elizabeth Warren. They are the only ones out there right now that can make any of this change happen. Of course, Congress will likely stand in their way, but if lawmakers are truly servants of the public, then they must listen to reason rather than self-interest. Douglas nicely summarizes his vision at the end:

"There are only two choices: A police state in which all dissent is suppressed or rigidly controlled; or a society where law is responsive to human needs.
If society is to be responsive to human needs, a vast restructuring of our laws is essential.
Realization of this need means adults must awaken to the urgency of the young people's unrest--in other words there must be created an adult unrest against the inequities and injustices in the present system. If the government is in jeopardy, it is not because we are unable to cope with revolutionary situations. Jeopardy means that either the leaders or the people do not realize they have all the tools required to make the revolution come true. The tools and the opportunity exist. Only the moral imagination is missing.
If the budget of the Pentagon were reduced from 80 billion dollars to 20 billion it would still be over twice as large as that of any other agency of government. Starting with vast reductions in its budget, we must make the Pentagon totally subordinate in our lives.
The poor and disadvantaged must have lawyers to represent them in normal civil problems that now haunt them.
Law must be revised so as to eliminate their present bias against the poor. Neighborhood credit unions would be vastly superior to the finance companies with their record of anguished garnishments.
Hearings must be made available so that the important decisions of federal agencies may be exposed to public criticism before they are put into effect.
The food program must be drastically revised so that its primary purpose is to feed the hungry rather than to make the corporate farmer rich. A public sector for employment must be created that extends to meaningful and valuable work. It must include many arts and crafts, the theatre, industries; training of psychiatric and social workers, and specialists in the whole gamut of human interest." (92-94, emphasis mine)

Justice Douglas is most famous for introducing the word "penumbra" into the world of constitutional rights. A lot of people criticize him for that. People tend to forget that he was giving married couples the right to use contraceptives.

If Justice Douglas was mentioned in my U.S. History classes, I can't remember. However, in my small and humble opinion, he was one of the greatest Americans to have lived. Law school has been a long and painful process, but at the very least it allowed me to gain exposure to Douglas, and to find a view of the Constitution and American society at large with which I could agree and seek to propagate in my own life.

Points of Rebellion is an inspiration. Some of the material may be dated, but those portions are at least entertaining. It is a short little book. If you care about radical politics, I highly recommend you check it out. Then go out there, and try to build a more enlightened society.